STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BIO-TECH TRACKING SYSTEMS, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 90-7760
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly designated Hearing Officer on February 14, 1991, in Tallahassee, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: William E. Williams, Esquire
Robert D. Fingar, Esquire Huey, Guilday, Kursteiner
and Tucker, P.A.
106 East College Avenue, Suite 900 Post Office Box 1794
Tallahassee, Florida 32302
For Respondent: Michael P. Donaldson, Esquire
Carol Forthman, Esquire
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road, Room 654
Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether the Department should issue an air pollution source permit to the Petitioner to allow an expansion of an existing biomedical waste deposal facility, depending upon whether Bio-Tech published notice of the Department's intent to issue that permit in a "newspaper of general circulation in the area affected" and whether it provided proof of publication to the Department in a timely manner.
PRELIMINARY STATEMENT
This cause arose upon the filing of an application for an air pollution source permit by Bio-Tech Tracking Systems seeking authorization to expand an existing biomedical waste disposal facility in Tallahassee, Leon County, Florida.
On September 7, 1990, the Department issued an intent to issue the air pollution source permit to G.T. Williams, then the President of Atlantic and Pacific Medical Waste, Inc.
On or about September 17, 1990, G.T. Williams transferred Permit No. AC 37- 181410 to the Petitioner. The permit application in question requested authorization to construct a biological waste incinerator at 1109 Orange Avenue, Tallahassee, Leon County, Florida. The Order of Intent to Issue provided that publication of the Notice of Intent to Issue Permit should be made in a newspaper of general circulation in the area affected, one time only, within 30 days. The Notice of Intent to Issue also directed that the applicant should provide proof of publication to the Department at its the Northwest District Office at 160 Governmental Center, Pensacola, Florida, 32501-5794, within seven days of publication. The Intent to Issue concluded by stating that "failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit." (emphasis supplied).
In due course it came to the Department's attention that publication of the notice of intent to issue the permit had been made in the "Leon County News," a weekly newspaper having a limited number of subscribers in Leon County. Because it viewed this newspaper as not being a newspaper of general circulation in the area affected, and because it took the position that the Petitioner had not timely furnished proof of the publication to the Department at its Pensacola office, at the address referenced above, on October 26, 1990, the Department issued a Notice of Permit Denial.
Thereafter, Bio-Tech timely filed a petition for an administrative hearing to contest that denial. In its petition it alleged that it published notice of the Department's intent to issue the permit in the October 4, 1990, Leon County News "a newspaper of general circulation in the area affected" by the proposed facility. Bio-Tech also contends that proof of publication was timely provided to the Department. Alternatively, it argues that failure to timely to provide the Department proof of publication, assuming publication in the newspaper itself accomplished, is not an independent basis for permit denial or is harmless error.
The issues being thus framed, the cause came on for hearing as noticed.
Bio-Tech adduced the testimony of Charlotte James to testify on the issue of whether proof of publication was timely provided the Department. Bio-Tech also offered exhibits 1-9 which were received into evidence. The Department adduced the testimony of Ed Middleswart, the manager of the Air Program for the Department's northwest district located in Pensacola. The Department adduced no exhibits as evidence, although Exhibit 8 was accepted as evidence, it being a joint stipulation of the parties. Upon the Department's motion, the Hearing Officer took official recognition of Chapter 50, Florida Statutes, and Section 403.815, Florida Statutes, as well as Rule 17-103.100, Florida Administrative Code.
Ms. Edwina Stephens filed a Petition For Leave To Intervene shortly prior to the hearing. Upon motion by the Petitioner, the petition for leave to intervene filed by Ms. Stephens was denied, for failure to conform to Rule 22I- 6.010, Florida Administrative Code, relating to intervention, by order dated February 8, 1991. Leave was accorded to Ms. Stephens to amend her petition to properly assert her standing to participate as a party in this proceeding. Ms. Stephens never filed an amended petition and therefore was never accorded party status in this proceeding. Mr. Jack C. Wolff also filed a petition for leave to
intervene. That petition was denied as not being timely filed in accordance with Rule 22I-6.010, Florida Administrative Code. Mr. Wolff was allowed to testify in the proceeding. Indeed, pursuant to Section 120.57(1)(b)4., Florida Statutes, and Rule 22I-6.025(2), Florida Administrative Code, all members of the public present at the hearing were offered the opportunity to testify at the conclusion of the parties' cases. Four people took advantage of that opportunity and therefore testimony was provided by Mr. James C. Wolff, Mr.
Jerry Moore, Ms. Edwina Stephens, and Mr. James MacMillan.
The hearing concluded on the date set and the parties ordered a transcript of the proceeding. The transcript of the proceeding was filed February 19, 1991, and in due course the proposed findings of fact and conclusions of law prepared by the parties were timely filed. Those proposed findings of fact are treated in this recommended order and specifically ruled upon in the appendix attached hereto and incorporated by referenced herein.
FINDINGS OF FACT
On May 31, 1990, G.T. Williams applied to the Department of Environmental Regulation (Department) for an air pollution source permit. He sought the permit in order to have authorization to construct a biological waste incinerator in Gadsden County, Florida. The permit application was subsequently amended to provide that the incinerator would be constructed as part of the expansion of an existing biomedical incineration facility in Leon County, Florida.
On September 7, 1990, the Department issued its Order of Intent to Issue the air pollution source permit to Mr. Williams. The Order of Intent to Issue provides, in relevant part, as follows:
Pursuant to Section 403.815, Florida Statues, and DER Rule 17-103.150, F.A.C., you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a newspaper of general
circulation in the area affected" means; publi- cation in a newspaper meeting the requirements of Section 50.011 and 50.031, F.S., in the county where the activity is to take place.
The applicant shall provide proof of publica- tion to the Department, at the Northwest District, 160 Governmental Center, Pensacola, Florida 32501-5794 within seven days of publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. (emphasis added).
Prior to publication of the Intent to Issue, the Department did not advise the Petitioner which newspaper to publish the notice in and, in fact, neither Chapter 403 nor any of the provisions of Title 17, Florida Administrative Code, grant the Department authority to designate a newspaper for publication use.
On October 4, 1990, Bio-Tech published the Department's Notice of Intent to Issue Permit in the Leon County News. On October 17, 1990, the Department approved transfer of the permit from G.T. Williams to Bio-Tech.
The Leon County News is a weekly newspaper. It has been continuously published in Leon County, Florida, since 1980. At least 25 percent of the words in the Leon County News are in the English language and it is entered as second class mail at the Woodville Post Office in Leon County, Florida. The Leon County News is available for purchase by the general public by mail subscription. It is also available for sale to the general public at newspaper racks located at the following locations: Gary's IGA, 363 Woodville Highway, Woodville, Florida; Publix Super Market Store #113, 1719 Apalachee Parkway, Tallahassee, Florida; and Publix Super Market Store #2150, 1940 North Monroe Street, Tallahassee, Florida.
The general public is encouraged to purchase legal and other advertisements and notices in the Leon County News, and the newspaper regularly contains help wanted ads, ads for services, business advertising, real estate ads, and public service ads. The Leon County News also contains national, state, and local news stories and features as well as nationally syndicated columns of interest to the general public. Its published matter is not characterized by narrowly focused published materials of interest to only an isolated trade group, profession or narrow segment of the public.
A number of state and local government agencies, including the Department of Highway Safety and Motor Vehicles, the Department of State, the Department of Agriculture, Division of Forestry, the Department of Professional Regulation, and the Leon County Circuit Court publish statutorily-mandated legal notices in the Leon County News. A review of the editions of the Leon County News from October 4, 1990 (the publication date at issue), through the hearing date indicates that these legal notices include notices of complaints filed against professional licenses, constructive service of process, notices of administration of estates, notices of foreclosure sales, notices of petitions for forfeiture, notices of claims of lien, and notices of fictitious name registrations. Many of the notices published by the courts and these governmental agencies involve notices of actions pending which involve potential loss or forfeiture of valuable property or legal rights.
Charlotte James is the Secretary of the Bio-Tech Corporation. On October 4, 1990, she prepared a letter transmitting a copy of the notarized proof of publication of the Notice of Intent to Issue Permit, as well as an October 3, 1990, newspaper article concerning the facility to the Department. This was in order to respond to the admonition contained in the Notice of Intent to Issue Permit directing that proof of publication of the Notice of Intent to Issue be provided the Department within seven days of publication. The envelope containing that transmittal letter, proof of publication, and the accompanying newspaper article was properly addressed and posted and was mailed to Mr. Jack Preece of the Department's Northwest District Office from the U.S. Post Office on Woodward Avenue, located near Florida State University, in Tallahassee, Florida. Ms. James took the letter to that post office, hand delivered it to the postal clerk, watched the postal clerk cancel the letter and place it in a receptacle for mailing to the Department's Northwest District office and Mr. Jack Preece on October 4, 1990.
It subsequently developed that the Department's personnel could not locate the proof of publication in the permitting file in the Northwest District office in Pensacola, which had been mailed by Bio-Tech on October 4, 1990. The Department's Office of General Counsel in Tallahassee did receive a copy of the proof of publication sometime before October 25, 1990. The Department's personnel have been unable to determine when the Office of General Counsel actually received the proof of publication. In any event, the Department's Northwest District office received a copy of the proof of publication by telefacsimile on October 25, 1990, prior to the issuance of the Notice of Permit Denial.
Thereafter, on the next day, October 26, 1990, the Department issued its Notice of Permit Denial to Bio-Tech on the basis that Bio-Tech allegedly failed to publish the notice of the original intent to grant the permit "in a newspaper of general circulation in the area affected;" and that the applicant failed to provide proof of publication to the Department within seven days of that publication.
On November 29, 1990, Bio-Tech filed its petition for formal administrative hearing alleging that the Leon County News is a newspaper of general circulation in the area affected and that proof of publication of the Notice of Intent to Issue was timely provided the Department. Alternatively, Bio-Tech pleads that failure to provide the Department with a copy of the proof of publication within seven days of the date of publication is not a valid basis for permit denial but rather is harmless error.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 403.815, Florida Statutes, authorizes the Department to enact rules requiring an applicant to publish notice of proposed agency action relating to a permit application filed under Chapter 403, Florida Statues. That statute provides that notice shall be published in a newspaper of general circulation in the area affected. The statute further provides that "the secretary may, by rule, specify the format and size of such notice." The statute does not authorize the Department to designate a newspaper by any means other than it being a "newspaper of general circulation in the area affected." The statute does not allow the Department to impose additional criteria limiting the newspaper in which notice may be published. It only allows it to impose criteria relating to the size and format of the notice. The Department's Order of Intent to Issue Permit states that:
pursuant to Section 403.815, Florida Statutes, and DER Rule 17-103.150, F.A.C., you (the applicant) are required to publish at your
own expense the enclosed Notice of Intent to Issue Permit. The notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this Rule, 'in a newspaper of general publication in the area affected' means: Publication in a newspaper meeting the requirements of Sections
50.011 and 50.031, F.S., in the county where
the activity is to take place. The applicant shall provide proof of publication to the Department at the Northwest District, 160 Governmental Center, Pensacola, Florida
32501-5794, within seven days of publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit.
Pursuant to Section 403.815, Florida Statutes, the Department enacted Rule 17-103.150, Florida Administrative Code. That Rule at subsection (1)(c) provides in relevant part, as follows:
The notice shall be published one time only in the legal ad section of a newspaper of general circulation in the area affected.
For the purpose of this Rule, "publication in a newspaper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, Florida Statues, in the county where the activity is to take place....
Thus, then the Department's rule in its plain language provides that "newspaper of general circulation" means a newspaper meeting the requirements describing such a newspaper contained in Sections 50.011 and 50.031, Florida Statutes. The Department's Notice of Intent to Issue, moreover, states clearly that the publication must be in a newspaper meeting the requirements of Sections 50.011 and 50.031, Florida Statutes. This is an unequivocal statement that the Department interprets its rule to clearly mean one meeting the requirements of those two statutory sections, as the plain language of the rule clearly indicates. The Department has conceded that its Intent to Issue contained an interpretation of its rule (indeed a repetition of the relevant language) concerning what is meant by "newspaper of general circulation" with reference to Sections 50.011 and 50.031, and not, for instance, to some other rule option involving another area of the Department's regulation which might provide for notice in a newspaper of the largest general circulation in the area affected.
See, by comparison, Santa Fe Lake Dwellers Association, Inc. v. Department of Environmental Regulation, 8 FALR 2602 (April 14, 1986). The Department has thus clearly acknowledged that Sections 50.011 and 50.031, Florida Statutes are preemptive in nature as the criteria for newspapers in which legal notices may be published.
Section 50.011, Florida Statutes, provides as follows:
50.011 Where and in what language legal notices to be published. -- Whenever by statute an official or legal advertisement or a publication, or notice in a newspaper has been or is directed or permitted in the nature of or in lieu of process, or for constructive service, or in initiating, assuming, reviewing, exercising or enforcing jurisdiction or power, or for any purpose, including all legal notices and advertise- ments of sheriffs and tax collectors, the
contemporaneous and continuous intent and meaning of such legislation all and singular, existing or repealed, is and has been and is hereby declared to be and to have been, and the rule of interpretation is and has been, a publication in a newspaper printed and
published periodically once a week or oftener, containing at least 25 percent of its words in the English language entered or qualified to be admitted and entered as second-class matter at a post office in the county where published, for sale to the public generally, available to the public generally for the publication of official or other notices and customarily containing information of a public character or of interest or of value to the residents or owners of property in the county where published, or of interest or of value
to the general public. (emphasis supplied)
It is clear that this section is preemptive in nature as to the criteria for newspapers in which legal notices may be published. The Leon County News meets each of the six criteria of the above-quoted provision. It is published weekly; at least 25 percent of its words are in English; it is qualified to be entered as second class mail at the Woodville Post Office in Leon County, where it is published; it is for sale to the general public; it is available to the public for publication of official or other notices; and it contains information of interest or value to residents to Leon County or the general public. As required by the Department's September 7, 1990 order and Rule 17-103.150, Florida Administrative Code, the Leon County News meets each of these criteria in Leon County, which is "the county where the activity is to take place." The Leon County News is therefore "a newspaper of general circulation" in the area affected under the criteria established by Section 50.011, Florida Statues.
Section 50.031, Florida Statutes, is also referenced in the Department's September 7, 1990 order and the above-cited rule related to publication of notice. This statute provides, in pertinent part, as follows:
No notice or publication required to be published in a newspaper ... pertaining to any affairs of the state, or any county, municipality or other political subdivision thereof, shall be deemed to have been published in accordance with the statutes providing for such publication, unless the same shall have been published for the prescribed period of time required for such publication, in a newspaper which at the time of such publication shall have been in existence for 1 year and shall have been entered as second-class mail matter at a post office in the county where published, or in a newspaper which is a direct successor of a
newspaper which together have been so published.
Section 50.031, Florida Statutes, thus adds these criteria to those contained in Section 50.011, Florida Statutes, for newspapers which may publish official notices:
The notice must be published for the prescribed period of time;
The newspaper must have been in existence for at least one year at the time of publi- cation; and
The newspaper must have been entered as second-class mail matter at a post office in the county where published.
The Petitioner herein was required to published the Notice of Intent to Issue Permit one time only and did that on October 4, 1990, in the Leon County News. That newspaper has been in existence continuously in Leon County since 1980 and is entered as second-class mail matter at the Woodville Post Office in Leon County. Consequently, the October 4, 1990 publication of Notice of Intent to Issue Permit in the Leon County News complied with the criteria of Section 50.031, Florida Statutes, for publication of legal notices.
The Department appears to take the position in this proceeding that because the Leon County News prints approximately 100 newspapers per week and the newspaper is sold in four locations in Leon County, as well as being available for sale by mail, that the newspaper is not a newspaper of "general circulation" because it is not "for sale to the public generally." The plain meaning of the language in Sections 50.011 and 50.031, Florida Statutes, reveals, however, that the size of the Leon County News printing run, the number of newspaper racks from which the newspaper is sold and the number of actual persons or subscribers who presently purchase the newspaper is irrelevant. The above statutes clearly only require in this regard that the newspaper involved be for sale to the general public. They contain no requirement by which the "general circulation" must be measured by the number of papers sold in a given locality or county. The fact that the newspaper is offered for sale to the general public (regardless of how many papers are actually bought) is what is determinative of "general circulation." If the newspapers sales or distribution were limited to a trade association, to members of a political association, a business entity, only to members or participants in a particular area of business or industry, to a religious group or any other limited group of persons, or was distributed at no cost, rather than sold or offered for sale, then the newspaper would not meet the criteria of "for sale to the public generally." However, so long as the newspaper is offered for sale to the general public, and otherwise meets the criteria of the above statutes, then legal ads may be published in the Leon County News and thus comply with legal requirements dictating publication of such notices or ads in "a newspaper of general circulation."
The Department's position concerning whether the paper is "for sale to the public generally" or "available to the public generally..." involves a determination concerning whether a newspaper has an adequate number of subscribers or purchasers in the Department's view, so as to be termed a "newspaper of general circulation." As the Department states in its Proposed Recommended Order, the Supreme Court of Florida has indeed addressed the issue of what constitutes a newspaper of general circulation several times since 1927. The constructive service statute referenced in these earlier cases dating from 1927 is a predecessor of the current Chapter 50, Florida Statutes. Although the language may not be identical to the present Chapter 50, the concept of a
newspaper of general circulation and what it constitutes remains the same, as the Department has acknowledged. (See also the emphasized language of the
above-quoted section). The Department first cites State ex rel. Yeager v. Rose,
114 So. 113 (Fla. 1927), wherein the Supreme Court held that a paper known as the "The Daily Record of Miami Florida" was not a newspaper of general circulation. The court stated that:
Any publication with a subscription of 350 or less, in a county of 150,000 or more popula- tion, and devoted primarily to reporting the proceeding and transaction of the courts, reporting little or no news in which the general public would be interested, would in our judgment not be a newspaper in contempla- tion of our constructive service statute, which must be construed in this connection with reference to the due process clause of the State and Federal Constitution. Id at 375 (emphasis supplied)
In attempting to make the point that the courts have held that newspapers are not ones of general circulation where subscription numbers are so small in relation to the county population involved by quoting this excerpt from the Rose opinion, the Department acknowledges a distinction between the Rose case and the instant case. In the Rose case, the newspaper involved was determined not to be a paper of general circulation, according to the above quoted portion of the opinion, because of the circulation numbers and the content of the paper as not involving news of interest to the general public.
In the instant case, however, the parties stipulated that the content of the Leon County News is consistent with Chapter 50, Florida Statutes, that is, it clearly offers a variety of news of a character of interest to the general public and is not a paper designed to appeal to just a narrow group, such as the examples delineated above. The Department, however, states that this distinction does not detract from the importance placed on the actual circulation numbers of the paper, compared to the county population, in determining whether it was a qualified newspaper for publication of notices or not. A reading of the opinion, however, reveals that it clearly cannot be said that the court relied on the issue of circulation numbers. Rather it was a combination of both factors, the circulation numbers and the seemingly greater emphasis the court placed on the type and character of material published in the paper concerning whether it was truly news of interest to the general public as opposed to narrowly focused information merely designed to appeal to a specified, limited group. The Department then cites State ex rel. Miami Leathercote, Co. v. Gray, 39 So.2d 716 (Fla. 1949), wherein the court was confronted with the question of whether a newspaper, "The Jewish Floridian" was a newspaper legally qualified to publish notices or suffice for constructive service of process. The court stated therein:
We think the rule is settled in this country that while a newspaper may be devoted primarily to the interests of a special class or group, if it contains news of a general character and interest to the community, even though limited but not negligible in amount, it may qualify as a newspaper of general circulation under the law.
The court cited for this proposition Tylee v. Hyde, 60 Fla. 389, 52 So. 968; and Culclasure v. Consolidated Bond and Mortgage Co., 94 Fla. 764, 114 So. 540 (Fla. 1927). The Department then cites the circulation figures for The Jewish Floridian, a circulation of 4,000 in a county with a population of 341,000 which was mentioned in the Gray opinion, comparing it to the much lower circulation of the Leon County News (on the order of approximately 100 in a county of a population of 130,184) and relies on the opinion then for the proposition that circulation figures are an indication of a paper's availability in the community for purposes of determining "general circulation." The Department attempts to make the point that although the circulation of The Jewish Floridian and The Daily Record in the Gray case and the Rose case may not have been deemed negligible that the circulation of the Leon County News with one paper being circulated for approximately every 1,301 citizens is within the meaning of "negligible," as discussed in the Gray opinion.
A clear reading of the operative portion of the opinion in the Gray case, quoted above, reveals a plain meaning different from the proposition for which the Department maintains this case stands. The "negligible amount" referenced in this quoted portion of the opinion did not refer to circulation numbers which may be "limited but not negligible in amount" in order to qualify the paper as one of general circulation. Rather, a fair reading of this language reveals that the court obviously meant that if the paper contained news of general character and interest to the community, then what may be "limited but not negligible in amount," in order for the paper to qualify as one of general circulation was the news of a general character and interest to the community. The words "limited but not negligible in amount" clearly refer to the question of the quality of a portion of the newspaper in question which was devoted to the news of a general character and interest and to the community in that case. The case is miscited by the Department and clearly does not stand for the proposition that the circulation numbers or number of papers sold must be "not negligible" in amount. In fact, the Gray case stands for the proposition that it is the character of news published in the paper which is really determinative of whether there it is a newspaper of general circulation appealing to a broad segment of the public Finally, the Department makes the point that circulation figures are clearly an indication of a paper's "availability" in the community. This proposition is inapposite. The language of the statute states that the paper should be for sale to the public generally and available to the public generally for the publication of notices, etc. It does not say that the paper must be available to the community, as that might relate to how geographically widespread it is circulated or to its subscription numbers. The statues merely requires that it be available to the public generally, not to the community as a whole. Available means that it is available for the public to purchase and is held out for sale to the public generally. It does not mean that a determination must be made on a case-by-case basis to see how many members of the public have actually purchased it. The Gray case in reality concerns itself with whether or not a newspaper prints news of a character and interest appealing to the general public and does not concern itself with determining a newspaper's general circulation character by an examination of its readership numbers.
The Leon County News offers subscriptions for sale to the public in Leon County and elsewhere. The actual number of subscribers who purchase subscriptions is irrelevant under the statute, as the Leon County News is "for sale to the public generally." The Florida Supreme Court, in the case of Culclasure v. Consolidated Bond and Mortgage Co., et al., 114 So. 540 (Fla.
1927), in construing the predecessor to the present Chapter 50, which for our purposes was substantially identical, stated that the Financial News of Jacksonville was a newspaper...
as defined in Yeager v. Rose, and as contem- plated by our constructive service statutes. While it is of especial interest to members of the bar, it is broad in its interests, carries limited telegraphic or general news, social, religious, political, business, professional, and allied subjects, for the information of the public, and has in fact a wide and diversified clientele. These, and not the numerical strength of its subscrip- tion list, are the controlling elements which determine the status of a newspaper as used in our constructive services statute, and as to whether or not service published therein would meet the requirements of due process of law. (citations omitted)
The Supreme Court in D.J. Johnson v. Taggart, et al., 92 So.2d 606 (Fla. 1957), followed this principle, citing with approval the Culclasure opinion, as well as the opinion in Miami Leathercote v. Gray, supra. The court speaking through Mr. Justice Thornal, discussed the requirement for a newspaper of general circulation, qualified to publish legal notices for purposes of the substantially similar constructive service statute at issue in that case. The court stated:
A photostatic copy of the proof of publica- tion filed with appellants' motion for summary decree shows prima facia that the newspaper had been published in Palm Beach County for more than a year prior to the date the notice was carried and that it had been entered as second-class mailing matter in the post office in Riviera Beach in the same county. These are the base requirements prescribed by Sections 49.01 and 49.03, Florida Statutes, FSA. While appellees'
affidavit supporting their motion for judgment asserts that this newspaper has only a limited circulation in the City of West Palm Beach and that it has no circulation in the Negro section of that city where most of their friends, as well as they themselves, reside, the fact remains that this is not necessarily a requirement made by the statute.
In Culclasure v. Consolidated Bond and Mortgage Co., 94 Fla. 764, 114 So. 540, we undertook to point out that the term 'newspaper' as used in our constructive service statute refers to a publication appearing at daily or weekly intervals and reporting news of local interest in the varied field of activities in the
community. The newspaper in order to qualify should be one of general circula- tion although it is not required that it be read by everyone in the county so long as it is available to the general public.
In the instant situation, just as occurred with the newspaper publication and its availability to the general public in the Culclasure and Johnson cases, the Leon County News is published in Leon County and is available to the general public for the publication of official or other notices and is for sale to the public generally in Leon County. It is held for sale at a number of places frequented by members of the general public (supermarkets), is available for sale through the mail, and at its place of publication. It contains news material of interest to the broad spectrum of the public. Thus, it is available to the general public and is for sale to the general public for these purposes. These cases show clearly that that is sufficient to constitute the Leon County News to be a newspaper of general circulation and thus in compliance with the above statutory provisions and the rule which references them, promulgated by the Department, as well as in compliance with the Department's own Notice of Intent to Grant Permit which constituted by its own admission, its interpretation of its own rule, as well as its publication statute, Section 403.815.
The case of Santa Fe Lake Dwellers Association, Inc. v. Department of Environment Regulation, 8 FALR 2602 (Order Denying Motion to Dismiss, April 14, 1986), appears to be the only administrative order construing the term "newspaper of general circulation" with regard to Section 403.815, Florida Statutes, and Rule 17-103.150, Florida Administrative Code. In an order denying motion to dismiss, the Hearing Officer therein held that the term "newspaper of general circulation" in Rule 17-103.150, Florida Administrative Code, has the same meaning as the term "newspaper of general circulation" in what is now Department Rule 17-17.775(3)(a), Florida Administrative Code, which governs publication of notice for purposes of the Transmission Line Siting Act. 8 FALR 2606-07. This Rule provided as follows:
A newspaper of general circulation is the newspaper which has the largest daily circulation within that county and whose principal office is in that county....
The Hearing Officer therein further concluded that "no reason appears why the only definition of what constitutes a 'newspaper of general circulation' in DER's rules should not be looked at before going outside DER's rules altogether...." 8 FALR 2607.
Without considering the question of validity of Rule 17-17.775(3)(a), Florida Administrative Code, because of the preemption in Section 50.011, Florida Statutes, which is preemptive as the method for publication by reference in both the Department's publication rule applicable to the type of permitting involved in this case, and in its Notice of Intent to Grant Permit citing that rule (both quoted above), the fact remains that the order in the Santa Fe case still is clearly distinguishable from the instant case situation. Both the Department's Order of Intent to Issue herein, as well as Rule 17-103.150(1)(c), Florida Administrative Code, state that the term "newspaper of general circulation" is defined by Sections 50.011 and 50.031, Florida Statutes, and not by any other Department rules. These statutes do not limit publication of legal notices to the "newspaper which has the largest daily circulation" in a county.
Consequently, since the Santa Fe case was decided, the Department has interpreted its own enabling statute and rules promulgated under that statute to define the term "newspaper of general circulation" in accordance with Sections
50.011 and 50.031, Florida Statutes. In fact, the Department would be precluded from imposing a more strigent criterian on its publication of notice requirement because Section 50.011, Florida Statutes, is preemptive. Section 403.815, Florida Statutes, only allows the Department to impose criteria related to the size and format of the notice. It does not allow the Department to impose criteria limiting the newspapers in which notice may be actually published.
The Department's September 7, 1990 order requires that Bio-Tech put the Notice of Intent to Issue Permit in a newspaper which meets the criteria in Sections 50.011 and 50.031, Florida Statutes, in the "area affected." The "area affected" is defined as the "county where activity is to take place," i.e. Leon County. The Leon County News meets each of the criteria in Sections 50.011 and 50.031, Florida Statutes, in Leon County. Furthermore, Section 50.011, Florida Statutes, is expressly preemptive of other criteria governing the types of periodicals which publish legal notices. Bio-Tech's publication of the Notice of Intent to Issue Permit in the October 4, 1990 Leon County News therefore satisfies the publication condition and the Department's September 7, 1990 Order of Intent to Issue Permit. Consequently, on this basis the air pollution source permit should be issued.
Although one might be inclined to a sympathetic view of the plight of the Department, and the members of the public concerned with the factual basis for the permit, who did not learn of the proposed grant of the permit because of publication in a newspaper of such low readership mere concern for their predicament cannot dictate resolution of the legal issues presented in this case. In the apropos words of Justice Thornal in the D.J. Johnson Opinion, supra, "we have examined this record with a great deal of sympathy for the position of the appellees. [Appellees lost their land due to sale of a tax deed, newspaper publication of the notice of which was the issue in appeal on that case.] However, we are not authorized to embellish the legislative requirements with our notions of what might be fair or morally just in a particular situation of this kind.... If additional requirements are to be imposed they will have to be inserted by the Legislature rather than by this court."
Turning now to the second issue at bar, involving the question of the provision of proof of publication to the Department by the Petitioner, it is established that Bio-Tech properly addressed, stamped, and mailed the proof of publication of the Department's Intent to Issue Permit to the Department's Northwest District office on October 4, 1990. The Department could not locate this copy of the proof of publication, but it is presumed that a letter properly addressed, stamped, and mailed via the U.S. Mail in the ordinary course of business is received by the addressee of such a letter. See Allstate Insurance Co. v. Eckert, 472 So.2d 806 (Fla. 4th DCA 1985). The Department is thus presumed to have received the proof of publication mailed by Bio-Tech on October 4, 1990. Although the Department maintained that the proof of publication did not "surface" in its General Counsel's office until October 25, 1990, whereupon it was telefaxed to the Pensacola office; that did not establish in any way that it was only received on October 25. In terms of the evidence of record, it is not known when it was actually received, but it is known that it was posted and duly mailed on October 4, 1990, and was thus timely placed in the mails.
Alternatively, the Department's Order of Intent to Issue requires that the applicant "provide" proof of publication do the Department. The word "provide," like the word "serve," does not place ultimate responsibility for actual delivery into the Department's files on the applicant. If the Department wished to place that burden on the applicant, it would have used the term "filed." It is therefore concluded that Petitioner, by timely mailing a copy of the proof of publication on October 4, 1990, timely provided proof of publication to the Department. See Gavin v. Gavin, 456 So.2d 535, 537 (Fla. 1st DCA 1984). Bio-Tech, therefore, complied with this requirement of the order of intent to issue permit.
Additionally, the purpose of requiring an applicant to publish notice of agency action is to give substantially affected persons an opportunity to participate in an administrative proceeding. See Section 403.815, Florida Statutes, and Rule 17-103.150(4), Florida Administrative Code. Consequently, the crucial element in the Department's publication requirement is that the notice be published to trigger the commencement of the time for affected persons to request a hearing. The requirement that proof of publication be provided to the Department does nothing to affect the rights of third parties, but merely is a technical requirement which allows the Department to determine whether a third party has timely exercised its rights to contest a published notice of intended agency action. If an applicant publishes notice of intended agency action, but fails to timely provide the Department with proof of that publication, the deficiency is one which is easily cured. No harm will occur because the permit will not be issued until proof of publication is received by the Department, in any event, because of Rule 17-103.510(4), Florida Administrative Code. In this case, when the Department did not receive (or as is equally likely, misplaced) the proof of publication, it obtained a telecopy of the proof of publication.
In fact, the Department received proof of publication in this case before it issued the Notice of Permit Denial.
Consistent with the position that providing proof of publication to the Department is a technical requirement, the Order of Intent to Issue provides that failure to publish the notice in a newspaper of general circulation and provide proof of publication in a newspaper of general circulation may be grounds for permit denial. In other words, the applicant must fail to meet both conditions for the Department to decide to change its mind and deny the permit. In fact, a comparison of Rule 17-103.150(4) with Rule 17-103.150(6), Florida Administrative Code, demonstrates that while failure to publish notice is an independent basis for permit denial, failure to provide proof of publication simply delays issuance of the permit and is not a basis for denial of it. These rules provides as follows:
(4) Notice to substantially affected persons concerning application for department permits is an essential and integral part of the State environmental licensing process. Therefore,
no application for a permit for which publi- cation of notice is required shall be granted until and unless proof of publication of notice is furnished to the appropriate permitting office. (emphasis supplied).
(6) Failure to publish any notice of appli- cation, notice of intent to issue permit or notice of agency action required by the department shall be an independent basis for denial of a permit.
It is therefore concluded that failure to timely provide proof of publication is not an independent basis for denial of a permit. It merely is a basis for delay of issuance of a permit until the proof is provided and, in any event, would be harmless error in the case at bar since, if the proof of publication did not reach the Department before October 25, (although it was timely posted to the Department and was thus "provided") the fact remains that it was in the Department's hands before issuance of the Notice of Permit Denial.
Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleading and arguments of the parties it is, therefore, recommended that a final order be entered by the Department of Environmental Regulation granting the application of Bio-Tech Tracking Systems, Inc., for an air pollution source permit.
RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of April 1991.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7760
Petitioner's proposed findings of fact: 1-17. Accepted.
Respondent's proposed findings of fact:
1-8. Accepted.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and not proved by the preponderant weight of the evidence. The evidence does not show that the publication was not received by the Department before October 25, 1990, even if one accepts that it did not reach the appropriate office until that date.
Accepted, although that does not establish that that was the only copy of the proof of publication ever received by the Department's Northwest District office.
Accepted, but immaterial to the findings of fact and conclusions of law made on the proof of publication issue herein.
Accepted and, as concluded herein, the proper posting of the proof of publication constituted the provision of proof of publication to the Northwest District office.
Accepted.
Accepted, but not itself materially dispositive of the issues in dispute.
15-18. Accepted.
19-21. Accepted.
Accepted, but immaterial and irrelevant.
Accepted, but immaterial and irrelevant.
Accepted, but not in itself materially dispositive of the issues in dispute for the reasons asserted in the above findings of fact and conclusions of law.
Accepted, but not in itself materially dispositive of the issues in dispute for the reasons asserted in the above findings of fact and conclusions of law.
Accepted in terms of this indication of what the Department's Notice of Intended Agency Action was which resulted in the petition which engendered this proceeding. But not in the sense that that notice of intended agency action was based upon found facts in this proceeding. This is a de novo proceeding and no facts were found until the issuance of this recommended order.
Accepted.
COPIES FURNISHED:
William E. Williams, Esquire Robert D. Fingar, Esquire Huey, Guilday, Kursteiner
and Tucker, P.A.
106 East College Avenue Suite 900
Post Office Box 1794 Tallahassee, Florida 32302
Michael P. Donaldson, Esquire Carol Forthman, Esquire
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Room 654
Tallahassee, Florida 32399-2400
Carol Browner, Secretary
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Apr. 03, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 12, 1991 | Agency Final Order | |
| Apr. 03, 1991 | Recommended Order | "Newspaper of general circulation" means "offered for sale to the general public" not to a limited group. Subscriber numbers irrelevant. |
